England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
(HIS HONOUR JUDGE WILDING)

		Royal Courts of Justice Strand London, WC2A 2LL
		17 December 2014

LADY JUSTICE KING:
1. In this matter, the children's guardian, [MW], supported by the Hertfordshire County Council, appeal against the making of a supervision order made by His Honour Judge Wilding in care proceedings on 17 June 2014 in relation to a little girl, [L], born on 7 March 2007, who is 7; and [A], a boy, born on 11 September 2013, who is now 15 months old.
2. Throughout this judgment I will refer to each of the children by their name on the understanding that in any transcript and in any reports they will anonymised and known only as L and A.
3. Permission to appeal the order was granted by Ryder LJ on 24 July 2014. The judge refused the application of the local authority for care orders in relation to both children and of a placement order in respect of [A]. The issue before this court is whether the judge, having found the threshold criteria to have been satisfied but the welfare assessments of the parents to be inadequate, had been wrong in making supervision orders which would result in the rehabilitation of the children rather than having adjourned the case to allow for further assessments to be carried out.
4. Background
5. The mother of both children is SB. [L]'s father is TO. [L] has lived with her paternal grandmother and paternal step-grandfather since her reception into care on 23 October 2013. The father of [A] is AZ, who is 24 years old. [A] has been in foster care since he was 6 weeks old. The mother, who is 36 or 37, has three older children from previous relationships: D, aged 17; R, aged 14; and B, aged 13. R and B were also removed from the mother's care in October 2013. Two of the children now live with their father but D, the eldest, is living independently.
6. Social services have been involved with the mother and her children since at least October 2004 in relation to general concerns about her care of them. In May 2012 an assessment was commenced under the Common Assessment Framework carried out by the school-based family support worker to assist the mother in relation to routines, boundaries and behaviour strategies for her children.
7. The mother's case at trial was that there was limited involvement, with the support worker not visiting often and contact ending after a short period of time. The judge did not accept the mother's evidence, which was disproved by case notes which explained that this specialist service usually provides support for families for between 6 and 12 weeks but in the mother's case had continued for a year. The case notes referred to the difficulties in the mother sustaining basic routines and that whilst work was done during the course of the year in all areas of parenting both in relation to disciplining the children and in maintaining a clean and healthy environment for them, the mother was unable to sustain the things that she had learnt.
8. In October 2013, there was a further referral to social services by the school as they believed that R was hungry and not well dressed. On 23 October, the police executed a warrant to search the mother's home on suspicion of drug use by the elder children and also of their continued antisocial behaviour. No drugs were found and no action taken against any of the three older children. The police were, however, so concerned about the state of the house that they exercised their powers under section 46 of the Children Act 1989 and removed the children into police protection.
9. The mother was arrested and charged with neglect in respect of the children as the house was in what was referred to as an "uninhabitable state". The description of the property was one that was not fit for human habitation. There was electricity only in a few rooms (although the judge made a clear finding of fact that the mother had taken appropriate steps to have the electricity reinstated). The police, however, could see no food for the children although there were large quantities of takeaway food packaging. Three children were sleeping in the sitting room on soaking wet mattresses; there were no beds for B, R and D in their shared bedroom. It was suggested that two of the children were completely out of control and to make matters worse the mother had been served with possession proceedings by the landlord as a result of the older children's behaviour. The criminal proceedings were compromised when the mother accepted a caution.
10. Care proceedings were not instituted until 8 January 2014 in relation to [A], and 29 January 2014 in relation to [L]. Initially the matter came before the justices and it was not until the mother issued an application for the appointment of an independent social worker that the matter was put before the District Judge for a determination of that issue. The District Judge refused the application but expressed a number of concerns in relation to the assessments which were being conducted by the local authority. In a short judgment she noted the following:

i. "That being said [that is to say the refusal of the application] I am concerned about a certain amount of disarray in this case. It is as follows:

(b) the Guardian ... is leaving CAFCASS, a new Guardian is being appointed (next week);

(c) the Social Worker allocated to this case in January - Sarah Collins - has apparently only met with the mother on two occasions, the 4th and the 14th April and I am told this was not for the purposes of 'an assessment' but for completing information about [A] for parallel planning;

(d) the FAST assessment does not appear to have taken into account or explored the support network available to the family."

11. The District Judge went on:

i. "The Family Group Conference was directed to take place by the 18th February but was not held until after the completion of the FAST report. Undoubtedly, in order for a proper Re B-S extended analysis to be undertaken it must include the support available from the family and I would hope and expect this gap to be filled before the IRH on 2nd June."

12. In her judgment, the District Judge commented that she "remained very uncertain as to AZ's [that is the father's] intentions regarding parenting [L], who was not his child, and unclear exactly how he regards his relationship with [L] or she with him".
13. It was agreed at the case management hearing in front of the District Judge that the issue to be determined at trial was whether the mother and father had the capacity to change the level of care they offered to the children and to sustain those changes.
14. The District Judge accordingly made a raft of case management orders directed towards the resolution of that issue which included permission for the parties to put additional questions to a Dr Dowd, the adult psychologist who had reported on both parents, and also to the FAST team who were carrying out the local authority parenting assessment. The order also required the local authority to arrange a family group conference which the newly appointed children's guardian was to be invited to attend. The case was timetabled for a trial to take place in front of His Honour Judge Wilding to start on 2 June 2014.
15. The issues resolution hearing took place only a matter of days before the hearing. Those representing the mother applied for an adjournment. The basis of the application was that the local authority had filed no support plan setting out details which might allow the children to be rehabilitated and that the family group conference ordered by the District Judge had not taken place notwithstanding that order. The judge refused the application, considering that the matters could be addressed by the social worker and the new guardian in oral evidence.
16. Assessments
17. The local authority's case was that the mother and father would be unable to sustain any changes made in their parenting and that the need for the children to have a safe, secure and stable permanent home necessitated care orders being made; for [L] on the basis that she would remain living with her grandparents but in relation to [A], that there was no alternative for the local authority but to seek a placement order to be made. The local authority case up during the trial and until judgment was that the assessments available were sufficient to enable the evaluation to take place and that no further assessments were required.
18. The assessments before the court fell into three categories:

(1) Dr Dowd

19. The report of Dr Dowd was dated 20 December 2014. He identified a significant discrepancy between the mother's verbal and non-verbal reasoning skills with the result that her cognitive deficits would not necessarily be readily recognised as a result of her ability to communicate effectively. In relation to the mother he concluded that as a sole carer for the children she would continue to experience difficulties in providing appropriate, good enough, standards of parental care in the longer term.
20. So far as the father was concerned, he too had a significant discrepancy in his verbal and non-verbal cognitive. Dr Dowd referred to the father's reduced ability to develop insight and to act upon the issues of concern in terms of parenting. He concluded, however, that if he was motivated to provide appropriate standards of parental care then the father should be able to do so. Dr Dowd commented, however, that motivation is not a psychological characteristic that can be readily measured and must therefore be demonstrated by the father.
21. In an addendum, Dr Dowd reiterated his reservations in relation to the mother being able to care as the sole carer for either of the children. He remained of the opinion that the father does have the potential to compensate for the mother's need for additional support. Dr Dowd was, however, concerned about the father's parental and psychological maturity. He was also concerned that the father was unable or unwilling to name family members who were even aware of [A]'s existence, other than a first cousin, with the inevitable knock-on effect on the provision of potential family support for him.
22. "Clearly", said Dr Dowd, "for [A] to be able to benefit from the potential support of his wider family, they need to know of his existence". Dr Dowd concluded by saying, "If fully motivated then as a couple, my opinion is that both parents should not require significant support from professionals in order to enhance their parental skills to a level that would allow good enough parenting".
23. The judge appeared to accept the evidence of Dr Dowd. It follows therefore that the father's role was crucial to any welfare evaluation and the court had to be satisfied that he had the necessary motivation to provide appropriate standards of parental care for both children.
24. (2) FAST report
25. A parenting assessment was conducted by Ms Jacqueline Clark and Ms Elaine Williams. The report is dated 20 March 2014 and the addendum 2 May 2014. The report concluded that the parents would need intensive long-term support in order for the children to remain safe in the home environment. It concluded that neither parent would be able to manage the children as they grew and developed and as their behaviour became more challenging. Nor, they concluded, would they be able to sustain the home conditions or meet the children's basic needs such as health, hygiene, safety, emotional and educational needs to an acceptable standard.
26. The judge referred to that assessment as "quite a damning assessment", which on reading it is undoubtedly the case. Both Ms Clark and Ms Williams gave evidence. The assessment was the subject of considerable criticism by the mother, the guardian and, most significantly, the judge. The assessment had been completed without the benefit of Dr Dowd's reports, although they did consider it before completing their addendum. In addition, they had not read all of the contact notes, although they had "dipped into them". Finally, they were unaware of the outcome of an earlier family group conference (as opposed to the one ordered and which had not taken place).
27. (3) The children's guardian's report
28. The children's guardian, through no fault of her own, was appointed only 6 weeks prior to the final hearing. Whilst I have no doubt, and it is obvious from her report, that she worked extremely hard to be in a position to assist the court at the final hearing, the fact remains that she had only been able to meet the parents on one occasion and had only seen one contact visit. Importantly, the family group conference which would have enabled her to observe the dynamics of the extended family had not taken place.
29. The guardian expressed her significant reservations about the father, including that he had done nothing to intervene and improve the home conditions in which his tiny baby was living even though he had been at the mother's house only 2 days before the police removed the children. Further, the father accepted no responsibility for his child being in care. The motivation Dr Dowd regarded as critical, had not been demonstrated in that the father had failed to attend parenting classes when they had been available for him and he had lacked commitment to contact. In common with the mother, he had said in evidence that there were no problems with his parenting.
30. (4) Contact Notes
31. In addition to the three assessments, extensive contact notes were available, these demonstrated the mother's absolute commitment to contact and showed that it was of good quality. It also revealed that the father had only attended 21 out of a potential 87 contact visits to his baby and had had little contact with [L], a child to whom he was intending to be a step-parent. He did not attend the regular Saturday contacts when both children were present and the FAST assessment contact notes criticises him for failing to acknowledge [L] on her arrival and continually asking her to be quiet as [A] was asleep.
32. Counsel for the mother lays heavy emphasis on the contact notes as an assessment tool for the judge but it is important that the value of contact notes are not overstated. For my part, no matter what legitimate criticisms are made of the FAST assessment, it should not be expected that the assessors should in every case, read all of the voluminous contact notes; in this case made 5 days a week over many months. The essential flavour can often, although not always, be obtained from reading a representative sample and by the observation of contact by the assessors. Contact notes do, of course, have a value and can highlight both good and bad aspects of parenting. In this case, they show that the mother has been assiduous in attending contact and that the quality of that contact is good. What the contact notes cannot do, even if every single visit is closely analysed, is demonstrate whether the mother can make and sustain change day in day out, year in year out in such a way that history does not repeat itself. Observation of contact could have given some increased insight into the relationship between the parents and of the father's progress as a new father in handling his baby. Unfortunately, due to his inconsistent attendance, that information was not available.
33. The judge found himself in an invidious situation. The District Judge had properly refused the application for an independent social worker report and had attempted to put in place through her careful case management order, provisions to rectify the deficits in the assessment process. Unhappily, the local authority failed to comply with the order in terms of arranging for a family group conference, an important event in order to ascertain what support would be available in the event that there was rehabilitation and which would have given the guardian an opportunity to meet the extended family who would have to form part of a successful rehabilitation programme.
34. It was also a serious deficit that, despite indicating to the contrary in the assessment, the social workers had not in fact read Dr Dowd's report and so did not have the advantage of putting what they were seeing and hearing from the parents in context against the backdrop of the psychological assessment.
35. The local authority's case in closing was that, notwithstanding the criticisms of the defects in the FAST assessment, the conclusion was not undermined nor was it rendered unsafe to rely upon its conclusion. The judge said in his judgment in terms, "I respectfully disagree".
36. Having dismissed the FAST assessment, the judge notwithstanding the independent inquiries made by the Guardian, effectively also discounted her analysis of the guardian as having relied in part of the FAST assessment. That left Dr Dowd. In relation to his evidence, the judge appears only to have relied on that small part of his evidence that said, "If fully motivated then as a couple, my opinion is that both parents should not require significant support from professionals in order to enhance their parental skills to a level that would allow good enough parenting".
37. The judge, having dismissed all the evidence going directly to the parenting assessment, moved on to analyse over five paragraphs, a number of serious concerns he had about the father, the headlines of which were: (1) his failure to take up a parenting course; (2) his failure to attend contact; (3) his decision to go to Pakistan at a critical time in December 2013; (4) his failure to inform his family of the birth of [A]; (5) his failure to do anything about the state of the home where his child was living, which was revealed in the photographs as "disgusting". These issues, the judge said, brought into question the father's motivation; a key issue, it will be recollected, in Dr Dowd's view in determining if the father could care for the children.
38. How then did the judge conduct the welfare analysis which led him to conclude that notwithstanding those findings he was satisfied that rehabilitation to the father and mother was in the best interests of the children. The judge said in relation to his conclusion:

i. "In my overall view too little weight has been given by the local authority and the guardian to the role that he can play in the future care of the children. I am satisfied that his family now do know of his relationship ... and of the birth of [A]. When asked in evidence about his parents' and family's acceptance of [A], he said as they love him, so they love [A]. I accept that. It is hard not to."

39. The judge went on in the following paragraph:

i. "When I come to look at [the father's] evidence overall, even with the adverse findings I have made, I am satisfied that he intends to be available to parent his child and also [L]. He certainly has the capacity to do so, as determined by Dr Dowd ...

ii. Further, in my assessment [the father] has shown that he has the motivation to change. It may be late in the day, but I accept that that is now the position. He has embarked on a parenting course. He has the ability to learn from that and to put that learning into practice."

40. The judge then referred to the fact that the father's legal status in this country is tenuous. But concludes by saying:

i. "Overall, I find that [the father] can be a significant factor in parenting [A] and [L] together with the mother."

41. The judge noted the efforts that the mother had undoubtedly made in improving the state of the house and in embarking on a course of cognitive behavioural therapy.
42. Finally, the judge concluded that:

i. "The local authority's case simply does not reach the point that nothing else will do. ... I have balanced the harm which [L] and [A] have suffered or are likely to suffer against the capacity of the mother and [father] to meet their needs, with the likely effect upon both [A] and [L] of their being removed permanently from the care of their parents. The FAST assessment was inadequate. The social worker and the guardian relied upon it. This has produced an analysis by them of the case that, in my judgment, is not supported by the evidence that I have found."

43. The judge made the findings summarised above and expressed his intention to make a supervision order allowing for the return of the children to the care of the mother and father.
44. After the judgment was delivered the local authority, supported by the guardian, sought permission to appeal. Final orders were not made at that stage and the matter was adjourned to enable an alternative care plan to be prepared for the rehabilitation of the children, which instruction was faithfully carried out by the local authority.
45. The matter came on before the judge again on 27 June 2014, when final supervision orders were made. An agreement was made, however, for the children to remain in their current placements pursuant to section 20 of the Children Act 1989 pending the hearing of appeal. At that hearing the judge quite properly asked those representing the local authority and the guardian if they wished him to clarify any particular issues. They declined his invitation.
46. Discussion
47. In her closing, counsel on behalf of the mother filed extensive and detailed written submissions. In those submissions she set out in order of preference three alternatives: (1) for [L] and [A] to return to the mother's care; (2) in the alternative for [A] to be returned to the mother's care and for [L] to remain in the care of the paternal grandmother under a supervision order and a residence order; (3) in the alternative for the status quo to remain and for an independent social worker to undertake a full parenting assessment. To this end, a Part 25 application had been issued on behalf of the mother at the conclusion of the trial and served on the parties.
48. In the body of her submissions for the judge in the trial, counsel referred to the deficits of the assessment process, indicating that there was a clear and significant gap in the evidence which the parents had already sought to remedy when applying for the original independent social worker report. Counsel drew the court's attention to the fact that the District Judge had sought also to remedy the defects but at the end of the day the option of rehabilitation to the parents had not been properly considered and assessed.
49. In the light of what was clearly regarded as a surprising decision by the court to order rehabilitation, counsel for the mother has now been driven to make valiant attempts to uphold the judgment, now submitting that in fact no independent social worker report is required and relying in her skeleton argument heavily on the fact that despite the offer from the judge neither guardian nor local authority asked the judge to clarify or elaborate on the judgment and so they should not now seek to criticise it. She relies too on the fact that in the earlier stages of the proceedings the local authority and guardian had each opposed the appointment of an independent social worker. In her oral submissions today counsel submits that there is no evidential deficit, enumerating the praiseworthy changes in her life that her lay client has made.
50. The father, who has appeared unrepresented today, has told the court that he has himself ensured that the house is in a much better condition than previously and that he is now having contact with [L], with whom he is getting on well.
51. In oral argument, Mr Jones, on behalf of the guardian, submitted that although the local authority and guardian had maintained that the court had enough information within the FAST assessment and the guardian's analysis to determine the case at trial, once that evidence had been rejected the court had been left with an evidential vacuum.
52. I agree, and it seems to me that as a consequence the judge therefore fell into error in two respects: (1) the court having rejected the parenting assessments as being of any value to the court then have revisited the application for an independent social worker to address the unaddressed issues, most, but not by any means all, of which relate to the father; the court penalised the local authority in the costs in order to show his displeasure if he had felt it necessary; (2) in the absence of expert parenting evidence (as opposed to psychological evidence) the judge could rely only on the oral evidence of the parents as a route to carrying out the essential welfare analysis, a particularly challenging task conducted only through the medium of the witness box in circumstances when Dr Dowd had alerted the court to the mismatch between verbal and non-verbal skills in relation to both parents and also in the light of Dr Dowd's assessment that the father "had raised levels of social desirability and a resulting tendency to provide or withhold information in a manner which may cause others to reflect more positively upon him than reality may support".
53. In a judgment handed down only yesterday, Sir James Munby P revisited the well-known case of Re B-S in Re R(a child) [2014] EWCA 1625. In it he considered the approach to the welfare evaluation which it is necessary to carry out in assessing the realistic options open to a court in care proceedings. At paragraph 55, he said:

i. "Nothing that was said in Re B-S was intended to erode or otherwise place a gloss upon the statutory requirements of section 1 of the 1989 Act and section 1 of the 2002 Act. On the contrary, the exhortation for courts to undertake a balancing exercise which pits the pros and cons of each realistic option against the others was aimed precisely at discharging the court's statutory duty under section 1. In particular, before making a decision relating to a child's welfare, a court is required to have regard to, amongst other matters, the factors set out in the relevant 'welfare checklist'. The evaluation of options described in Re B-S must undertaken with those factors in full focus."

54. The President then went on at paragraph 58 to incorporate the observations of Ryder LJ in Re CM into his judgment:

i. "The process of deductive reasoning involves the identification of whether there are realistic options to be compared. If there are, a welfare evaluation is required. That is an exercise which compares the benefits and detriments of each realistic option, one against the other, by reference to the section 1(3) welfare factors. The court identifies the option that is in the best interests of the children and then undertakes a proportionality evaluation to ask itself the question whether the interference in family life involved by that best interests option is justified."

55. The President went on:

i. "I respectfully agree with that, so long as it is always remembered that, in the final analysis, adoption is only to be ordered if the circumstances meet the demanding requirements identified by Baroness Hale in Re B."

56. In my judgment, the judge failed to carry out such a welfare evaluation. There is no analysis of risk to be found in the judgment. On the face of it, even with the positives he found in relation to the mother's changes and the indications of same late change by the father, when the serious criticisms he had made of the father which related directly to the key issues of the father's motivation, were factored in it is hard to see how the judge reached a decision that the children's welfare would be protected by only a supervision order, and I further note that.
57. In any event, I am satisfied that the judge, having discounted the welfare evidence filed, was, as was recognised at trial by counsel, left without essential evidence to enable him to carry out the welfare evaluation. Without parenting assessment evidence in the broadest sense the judge was left without the material he needed with which to compare the benefits and deficiency of each realistic option; in this case, so far as [L] was concerned, this meant living with her grandparents or moving to her mother and stepfather; and, as far as [A] was concerned, the last resort option of adoption or alternatively rehabilitation home to his natural parents.
58. By ground 3 of the grounds of appeal, the children's guardian argues that the judge failed adequately to consider the effect of any order upon [L]. [L], it is quite clear, was not considered separately from [A] by the judge. [L]'s position needed separate analysis and consideration given that she has never lived with the father, whom she says she does not really know, and that queries were raised about the relationship between the father and [L] which the guardian felt needed further assessment. Specific consideration was also needed as to whether or not [L] and [A] should have separate placements. The local authority and guardian's care plan having provided, as I have already indicated, for adoption for [A], and for [L] to remain within the family.
59. On behalf of the guardian, it is rightly observed that rehabilitation for [L] was complicated. She would leave her grandparents, where she has now lived for over a year, and return not to her mother and three siblings but to a household without her elder brothers and instead a "new" baby brother and a stepfather she barely knows. Clearly, the father's ability to build a positive relationship with [L] is the key to a successful rehabilitation plan.
60. [L] had suffered a long period of serious neglect in the care of her mother. If she was returned to her mother's home, a position which can only be contemplated with the support of the father, the court needed to be clear that this 24-year-old man with no previous parenting experience was willing and able to care for [L] as well as his own child. His lack of attendance at contact with [L] and criticism of his attitude towards her at contact was not reassuring upon that point, nor was the guardian's observation that, whilst she was clear that the father loves his son, she was less convinced "at his relationship on feelings towards [L]".
61. The case is an example of the difficulties which can result from the preparation of inadequate assessments, in this case compounded, through no fault of her own, by the late appointment of the children's guardian. Whilst delay is always to be depreciated, the judge having identified the deficits in the assessments was wrong in failing to accede to the practical and realistic submission of counsel for the mother to adjourn the matter to enable an independent social worker report to consider the key issues of the motivation of the father and his ability to accept the considerable responsibility necessary for him to be able to support the mother. Without the father's practical and emotional support the mother would be unable to care for either of her children, and and the court needed proper evidence as to, his ability to provide her with security and stability and to be an antidote to the mother's difficulties in maintaining a household and environment that was safe and healthy for either of the children.
62. In her written submissions in support of the original application for the appointment of an independent social worker, counsel quoted from Re NL (A Child) (Appeal: Interim Care Order: Facts And Reasons), setting out Pauffley J's observations that, "Justice must never be sacrificed upon the altar of speed", in support of her submission that on the facts of this case the extension of proceedings beyond 26 weeks would be both reasonable and necessary.
63. It is trite law to say that delay is inimitable to the welfare of a child but, as Pauffley J's noted, the family justice reforms are intended to promote the welfare of the children and not to render those very children more vulnerable by premature decisions being made in order to achieve the statutory timetable.
64. Counsel referred the court to a number of authorities relating to the course to be adopted where it is believed by the parties that there has been insufficient, reasoning or analysis in a judgment. In particular the matter was considered by the Court of Appeal in Re A & L (Appeal Fact-Finding) [2011] EWCA Civ 1205, [2012] 1 FLR 134. Munby LJ (as he then was) emphasised the responsibility of the advocate to draw to the court's attention any material omissions in the judgment and the mirror obligation upon a judge to consider whether his judgment is defective for lack of reasons when permission to appeal is sought.
65. It should be noted that Munby LJ did not suggest that failure to comply with such obligations would lead to the dismissal of an appeal. Clearly, no matter how frustrated a court may be by a failure on the part of advocates to seek clarification at the proper time, the sanction for such an omission cannot be such as would compromise the welfare of the child in issue.
66. I will accordingly allow the appeal and order the matter to be remitted to His Honour Judge Wright, the designated family judge for the area.
67. Post Script
68. The father today, as I have already indicated, is unrepresented and as a lay man it is inevitably difficult for him fully to understand the nuances of the hearing or the judgment. I should make it clear for both his benefit and also for the mother that this court is not on any level making a determination as to whether [L] and [A] or either of them should or should not be rehabilitated to their care. What the court is saying is that before such a decision can be made it needs the further assessment of the parents, such an assessment will no doubt cover the fact that the house is now in good order and that the parents have been to parenting classes as well as aiming to achieve a better understanding of the father's family and the role they would play in [A]'s life if he goes home. The matter will go to a different judge for the case to be heard again in the light of a newly commissioned independent social worker's report and any additional evidence the designated family judge may order to be filed. Such a report will be conducted against the circumstances as they are now, as opposed to the circumstances as they were at the trial, and will be filed in accordance with the judge's broad case management powers.
69. LADY JUSTICE GLOSTER: I agree that this appeal should be allowed on the terms suggested by my Lady.
70. LORD JUSTICE TREACY: I agree.